Nishikant N. Sutar vs Tata Engineering & Locomotive ...
2017 Latest Caselaw 346 Bom

         spb/                                                             WP1474-2001-J.odt


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION
                                       
                      WRIT PETITION NO.  1474    OF  2001

         Nishikant N. Sutar,                                              ...  Petitioner. 
         R/at. Telco Society, Plot No.3,
         Survey No.147/1,Pune Saswad Road,
         Bhekerai Nagar, Fursungi, Pune-400013.

                                  V/s.

         M/s. Tata Engineering and Locomotive
         Company Ltd., having its office at 
         Pimpri, Pune 411 018.                                ... Respondent.
                                                ---
         Mr. V. N. Shekdar a/w.   Mr. A. P. Vanarse, Advocate for the 
         Petitioner.
         Mr.   Kiran   Bapat   a/w.   Mr.Rushil   Mathur   i/by   M/s.   Mulla   & 
         Mulla & C.B.C. for the Respondent.
                                                ---

                                                         CORAM :  P. R. BORA, J.
                                                         DATE    :  02nd MARCH, 2017.

                                                 Judgment Reserved On : 23.02.2017
                                              Judgment Pronounced On: 02.03.2017

         JUDGMENT  : 

1 The Petitioner by this Petition challenges the Award Part-II of the 2nd Labour Court, Pune dated 14.09.1999 in Reference (I.D.A.) No. 10 of 1992, whereby the Labour Court has modified the order of dismissal passed against the Petitioner to punishment of discharge.

Borey                                                        1/10




          spb/                                                       WP1474-2001-J.odt


         2              The petitioner was  employed as pattern maker with 

the respondent company since August, 1998. He was the member of the TKS. The Petitioner was served with a charge- sheet by the Respondent on 25.03.1989. It was alleged against the Petitioner that on 15.03.1989 between 6.10 a.m to 4.30 p.m, he forced the employees to disembark from the buses and/or other vehicles from reporting the workers in their respective shifts. It was further alleged that the petitioner told reporting employees that TKS had ordered a strike to retaliate against the action of the management of suspending Mr. Shilimkar, pending the enquiry and therefore they should not enter the work. It was further alleged that the petitioner had threatened the reporting employees that if they entered for work, they would be assaulted and their hands and feet would be fractured and head broken. It was further alleged that many employees, therefore, were forced to abstain from the work for the entire period of their shift. The petitioner was also alleged to have abstained from work on that day. It was further alleged that when some of the employees proceeded further to enter the work premises, the petitioner loudly asked the striking workers, who were around him in the mob, to assault them. It was further alleged that the petitioner assaulted the reporting employees. It was further alleged that because of the assault made by the petitioner and the assaults made by the other striking employees at the instigation of the petitioner, the reporting employees suffered bleeding and blunt injuries.

Borey                                                  2/10




          spb/                                                     WP1474-2001-J.odt

The list of such employees was provided alongwith the chargesheet. According to the respondent the acts committed by the petitioner were the misconducts under the Model Standing Orders applicable to the petitioner which read as below :

"24(k) "riotous, disorderly or indecent behaviour on the premises of the establishment";

24(b) "going on an illegal strike or abetting,inciting, instigating or acting in furtherance thereof";and

24(i) "commission of any act subversive of discipline or good behavour on the premises of the establishment".

3 An explanation was sought from the petitioner as to why disciplinary action should not be taken against him for the misconduct alleged against him as above. Since the explanation submitted by the petitioner was found unsatisfactory, a decision was taken to conduct a departmental enquiry against him upon the charges leveled against him and he was suspended pending enquiry and final decision. In the enclosures to the charge-sheet, the names of the employees assaulted by the petitioner were mentioned as Shri Gulab Shankar Nevale and Shri Prakash Mahadeo Warade. The

Borey 3/10

spb/ WP1474-2001-J.odt

description of the injuries suffered by the aforesaid two employees was also provided.

4 In the departmental enquiry total 7 witnesses were examined by the management in order to establish the charges leveled against the petitioner. All those witnesses were cross- examined by the petitioner. The petitioner submitted his defence statement and the enquiry was concluded. The enquiry officer after assessing the oral as well as documentary evidence brought on record, held the petitioner guilty for the charges leveled against him. After following the process the disciplinary authority vide order dated 29.01.1991 dismissed the petitioner from the service.

5 Against the order of dismissal the petitioner raised an industrial dispute which was referred to the adjudication to the Labour Court at Pune. After the pleadings were completed, the Labour Court, on considering the material on record and submissions made by the parties, held the enquiry conducted against the petitioner to be fair and legal and in accordance with the principles of natural justice and accordingly an Award of Part-I was delivered.

6 The Labour Court, then considered whether findings of the enquiry officer were perverse or whether the

Borey 4/10

spb/ WP1474-2001-J.odt

punishment imposed by the disciplinary authority was disproportionate.

7 The learned Labour Court did not cause any interference in the findings recorded by the enquiry officer, holding the petitioner guilty for the charges levelled against him, however, modified the punishment of dismissal and substituted it with the punishment of discharge. The petitioner has filed the present petition under Article 226 of the Constitution of India, challenging the award passed by the learned Labour Court.

8 The learned counsel appearing for the petitioner assailed the impugned award on various grounds. The learned counsel submitted that the enquiry officer as also the Labour Court failed in appreciating that though the incident of assault was stated to have occurred on 15.03.1989, Shri Nevale reported the said incident to the police after about six days on 21.03.1989. The learned counsel submitted that the delay in lodging the FIR itself was enough to hold that there was no substance in the allegation made against the petitioner. The learned counsel further submitted that the learned enquiry officer and the learned Labour Court failed in appreciating that since no substance was found in the complaint lodged by Shri Nevale and the Shri Warade, the police did not take any further step or file chargesheet against the petitioner or the other

Borey 5/10

spb/ WP1474-2001-J.odt

employees named by Shri Nevale and Shri Warade in their respective complaints. The learned counsel further submitted that the police report so filed by Shri Nevale and Shri Warade was through out not placed on record by the management. The learned counsel further submitted that there is no plausible evidence against the petitioner and the material witnesses were not examined by the department. The learned counsel further submitted that the security personnels did not state in their evidence any incriminating fact against the petitioner. The learned counsel submitted that merely because the petitioner was the active member of TKS, to victimize him, a false charger-sheet was issued to him and a farce of conducting departmental enquiry was created. The learned counsel submitted that despite there being any evidence against the petitioner the enquiry officer held the petitioner guilty and the learned Labour Court also without application of mind confirmed the said finding. The learned counsel, therefore, prayed for setting aside the impugned Award and consequently to set aside the order of dismissal and prayed for directing the reinstatement of the petitioner in service with continuity of service and full back wages.

9 The learned counsel appearing for the Respondent supported the impugned Award. The learned counsel after taking me through the evidence adduced in the enquiry proceedings and the findings recorded by the enquiry officer,

Borey 6/10

spb/ WP1474-2001-J.odt

submitted that overwhelming evidence had come on record proving the involvement of the petitioner in making assaults on Shri Nevale and Shri Warade are in respect of the riotous acts committed by the petitioner on 15.03.1989. The learned counsel further submitted that the evidence so placed on record on behalf of the department has remained unshaken and the enquiry officer has, therefore, rightly held the charges leveled against the petitioner to have been proved. The learned counsel submitted that the Labour Court has already taken a lenient view and has modified the punishment of dismissal to a punishment of discharge and no interference is required in the order so passed. The learned counsel placed his reliance on the Judgment of the Hon'ble Apex Court in the case of B. C. Chaturvedi vs. Union of India and others, (1995) 6 SCC 749. Referring to the observations made by the Hon'ble Apex Court in para 12 of the said judgment, the learned counsel submitted that the impugned order can only be interfered if any such material is available, indicating that the findings recorded by the disciplinary authority and confirmed by the courts below are based on no evidence or that no reasonable person would have ever reached to such conclusion as has been recorded by the Labour Court. The learned counsel therefore, prayed for dismissal of the petition.

10 I have carefully considered the submissions advanced by the respective parties. I have also perused the

Borey 7/10

spb/ WP1474-2001-J.odt

impugned order and the enquiry report as well as the other material on record. The learned Labour Court, after having assessed the evidence brought before it, has recorded a clear finding that the misconduct alleged against the petitioner was proved before the enquiry officer and that the enquiry conducted against the petitioner was in consonance with the principles of natural justice. Perusal of the enquiry report revealed that ample evidence was adduced before the enquiry officer in order to prove the misconduct alleged against the petitioner. As has come on record, total six witnesses were examined by the management. I need not refer to and elaborate the evidence of each of the said witnesses. The evidence of Shri Nevale and Shri Warade is sufficient to hold the petitioner guilty of the misconduct alleged against him. Nothing has come on record in the cross-examination of Shri Nevale or Shri Warade to dis-believe the facts deposed by them. Merely because Shri Nevale and Shri Warade are the members of Telco Kamgar Union, their testimony cannot be disbelieved, more particularly when the facts stated by the said witnesses have duly been corroborated by other witnesses and more particularly by the medical officer. The presence of the petitioner on the spot of occurrence at the time of incident has been fully established. It has also come on record through the evidence of Shri Warade and Shri Nevale, as well as other witnesses, that the present petitioner alongwith certain other employees was instigating the employees for making assaults

Borey 8/10

spb/ WP1474-2001-J.odt

on the workers who were willing to join their duties. The disorderly behavoiur of the petitioner on the premises of the company during the working hours of the company has been fully established. Another witness examined on behalf of the management namely Mr. Chavan was an eye witness to the incident. In his evidence before the enquiry officer, Shri Chavan has given elaborate account of the misconduct committed by the petitioner on the date of incident i.e. on 15.03.1989.

11 In view of the above, it does not appear to me that any error has been committed by the learned Labour Court in arriving at a conclusion that there is no perversity in the finding recorded by the enquiry officer. In so far as the punishment of dismissal is concerned, referring to certain judgments of the Hon'bel Apex Court as well as this Court, the learned Labour Court has rightly held that the second party workman i.e. the petitioner cannot be put back in the employment. Further, due leniency has been shown by the learned Labour Court by modifying the punishment of dismissal into a punishment of discharge. I see no reason to interfere in the order so passed by the learned Labour Court. As held by the Hon'ble Apex Court in the case of B. C. Chaturvedi, cited supra, this court, in its power of judicial review, cannot act as an appellate authority to re-appreciate

Borey 9/10

spb/ WP1474-2001-J.odt

the evidence and to arrive at its own independent findings on the evidence.

12 There is no merit in the petition. Hence the following order :

ORDER

The Petition is dismissed. However, without any order as to the costs.

(P.R. BORA, J)

.....

Borey                                                  10/10